United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford Magistrate Judge
OPINION AND ORDER DISMISSING DEFENDANT GENE'S
TOWING COMPANY WITHOUT PREJUDICE; GRANTING
THE CITY OF DETROIT'S AND THE DETROIT
POLICE DEPARTMENT'S MOTION TO DISMISS ; AND
GRANTING THE SECRETARY OF STATE'S MOTION
TO DISMISS 
J. TARNOW, SENIOR UNITED STATES DISTRICT JUDGE
- David Avery and three corporations he owns - bring this
suit under 42 U.S.C. § 1983 and Michigan state law for
monetary and injunctive relief against the City of Detroit,
the Detroit Police Department, the Michigan Secretary of
State, and Gene's Towing Company.
Amended Complaint provides very little factual detail.
Plaintiffs allege that Avery operates a tow-truck recovery
service and that in 2015 he was accused of identity theft and
violation of Michigan laws pertaining to the recording of
vehicle titles. He was prosecuted in the Third Circuit of
Michigan in State of Michigan v. David Avery, No.
15-06190301-FY (filed Dec. 17, 2015) and then State of
Michigan v. David Avery, No. 16-05507301-FY (filed Mar.
4, 2016). The county sought civil forfeiture against his
property in People of the State of Michigan ex rel. Kym
L. Worthy, Wayne County Prosecutor v. Real Property Located
at 3734-40 Fenkell, Detroit, Michigan, 48238, et
al., and One 2012 Ford DRW Tow Truck (VIN: 1FDOW5HTCDC09022),
et al, and David Avery, No. 16-000649-CF. Plaintiffs
have attached to their Amended Complaint a stipulated order
signed by Chief Judge Robert J. Colombo, Jr. ordering the
return of Plaintiffs' property.
also allege that the Michigan Secretary of State has placed
an administrative flasher on him and his companies that
requires Avery to ask permission of a Secretary of State
investigator before selling vehicles or renewing his
drivers' license. The flasher has also allegedly
prevented him from renewing his standing with the Highland
Park Police Department, where he previously served as a
filed suit on March 3, 2019. [Dkt. # 1]. They filed an
Amendment Complaint  on April 5, 2019. It appears from the
docket that one Defendant, Delanard Harris, was not served.
On May 15, 2019, the City of Detroit filed a Motion to
Dismiss . On June 4, 2019, Gene's Towing Company filed
a Motion to Dismiss . After filing a Motion for Extension
of Time , Plaintiffs responded to both motions on June
25, 2019. On July 16, 2019, Secretary of State Jocelyn Benson
filed a Motion to Dismiss . All three motions were
briefed, and a hearing was held on these motions on November
6, 2019. Per the Court's order, the City of Detroit and
the Secretary of State filed supplemental briefing [25, 26]
on November 20, 2019.
Secretary of State moves to dismiss for lack of subject
matters pursuant to Fed.R.Civ.P. 12(b)(1). A challenge to
subject matter jurisdiction takes the form of a facial attack
or a factual attack. Such a motion may challenge “the
factual existence of subject matter jurisdiction.”
Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir.
2014). Accordingly, Plaintiffs' factual allegations do
not get the benefit of the presumption of truthfulness, and
the Court may “weigh the evidence and satisfy itself as
to the existence of its power to hear the case.”
United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.
three movants move to dismiss under Rule 12(b)(6). On motions
to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must
“construe the complaint in a light most
favorable” to Plaintiffs and “accept all of
[their] factual allegations as true.” Lambert v.
Hartman, 517 F.3d 433, 439 (6th Cir. 2008).
“Although the factual allegations in a complaint need
not be detailed, they ‘must do more than create
speculation or suspicion of a legally cognizable cause of
action; they must show entitlement to relief.'”
Id. quoting LULAC v. Bredesen, 500 F.3d
523, 527 (6th Cir. 2007). To survive such a motion, Plaintiff
must plead factual content that allows the Court to draw a
reasonable inference that the defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
‘show[n]'-'that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679 (quoting
bring causes of action under 42 U.SC. § 1983 and
Michigan state law alleging mistreatment by Gene's
Towing, the City of Detroit, the Detroit Police Department,
and the Michigan Secretary of State.